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Law of Easements

Easements
differ from estates in land in that they are nonpossessory
interests.An easement
does not give the holder a right of possession but rather a right
to use something from the possessory estate of another.This presentation is meant to give a general overview of
the law of easements, beginning with some definitions and moving
on to explain the ways in which easements may be created and
enforced.[1]

An
easement is a nonpossessory interest in the land of another that
entitles the easement holder to limited use of another’s land
without interference.ORS 105.170 (1).An easement holder is a person with a legal right to use
the easement and may include the owner of the land across which
the easement passes.ORS
105.170 (2).[2]Because the land crossed by the easement is burdened by the
easement, it is referred to as the “servient estate.”

An
easement, unless specified otherwise, creates an unlimited
reasonable use of the servient estate. Verzeano v. Carpenter,
108 Or.App. 258, 815 P.2d 1275 (1991).The scope of an easement is not defined by its physical
characteristics, but by its purpose, and it has been stated that,

[A]n easement holder can make only such
use of an easement as is reasonably
necessary to accomplish the purpose for which the
easement is granted and the remaining dominion over the land upon
which the easement lies continues with the servient landowner.

Clark
v. Kuhn, 171 Or.App. 29, 33, 15 P.3d 37 (2000) (emphasis
added).Further, in
order for any easement agreement to satisfy the Statute of Frauds,
it must be in writing.Oltmanns
v. Lewis, 135 Or.App. 35, 38, 898 P.2d 772 Or.App. (1995).In certain instances, partial performance of an oral
agreement, coupled with adequate equitable grounds, may be
sufficient to take the agreement out of the Statute of Frauds.Id. at 39.

An
easement may be prescriptive, implied, or explicitly agreed upon.Foster Auto Parts, Inc. v. City of Portland, 171
Or.App. 278, 15 P.3d 573 (2000) (prescriptive easement created by
a 10 year period of certain use).Further, an easement may be affirmative, which permits an
easement holder to do certain acts on the servient estate, or
negative, in which the landowner is prohibited from making a
particular use of his or her land.Duester v. Alvin, 74 Or. 544, 145 P. 660 (1915).

Easements
can be further broken down into easements appurtenant and
easements in gross.The
characterization of an easement as appurtenant or in gross is
important because certain rights transfer with one and not the
other.There is an
extremely strong constructional preference for the finding of an
easement appurtenant rather than in gross.Sunset Lake Water Service Dist. v. Remington, 45
Or.App. 973, 976, 609 P.2d 896 (1980).

Easements
in gross are unrelated to the easement holder’s possession of a
dominant estate and do not ordinarily transfer with title to an
adjacent property. In determining whether a right granted is
appurtenant or in gross, courts must consider the terms of the
grant, the nature of the right, and the surrounding circumstances,
giving effect, as far as possible, to the legally ascertained
intention of the parties.Ruhnke
v. Aubert, 58 Or. 6, 113 P. 38 (1911).There is a strong preference for finding that easement is
appurtenant.See Verzeano
v. Carpenter, supra.

As
a general rule, easements in gross are not transferable unless
transfer is specifically authorized in the instrument creating the
easement.However, if
the easement has commercial value, unless there is an express
intent to limit alienability, the commercial easement in gross has
the same attributes of alienability as other interests in
property.Sunset
Lake Water Service Dist. v. Remington, 45 Or.App. 973, 609
P.2d 896 (1980).

A
license is a privilege granted by a landowner to a person allowing
use of the landowner's property for a particular purpose.Dority v. Hiller, 162 Or.App. 353, 357, 986 P.2d 636
(1999).A license need
not be in writing to satisfy the Statue of Frauds.Sproul v. Gilbert, 226 Or. 392, 359 P.2d 543 (1961).Generally, a license is personal to the individual who
received it, is not transferable, and is freely revocable. Hanscam
v. Sousa, 56 Or.App. 117, 641 P.2d 86 (1982).However, a license may become irrevocable if the
landowner's promise to allow a use of the land for an unlimited
time induces the other party to make significant expenditures for
permanent improvements that are consistent with the consented use.Dority v. Hiller, 162 Or.App. 353, 357, 986 P.2d 636 (1999).An irrevocable license is paramount to an easement.

A
profit a prendre is the right to take a profit from land.Jackson County v. Compton, 289 Or. 21, 609 P.2d 1293 (1980).Examples of a profit a prendre include a grant to allow (1)
a hunter to remove trapped or shot game from another’s land, Forsyth
v. Nathansohn, 139 Or. 632, 637, 11 P.2d 1065 (1932); (2) a
rancher to graze livestock on the land of another, Sproul v.
Gilbert, 226 Or. 392, 359 P.2d 543 (1961); or (3) a person to
remove rock or minerals from another’s land, Jackson County
v. Compton, 289 Or. 21, 609 P.2d 1293 (1980).A profit a prendre confers two rights upon the grantee - a
license which authorizes the grantee to enter upon the
landowner’s real property and authorization to the grantee that
he or she is permitted to carry away certain things from those lands.Forsyth v. Nathansohn, 139 Or. 632, 637, 11 P.2d
1065 (1932).A profit
a prendre necessarily operates as an easement to allow a person
onto another’s land for the purpose described in the grant.High v. Davis, 283 Or. 315, 322, 584 P.2d 725
(1978).Therefore, it
must satisfy the Statute of Frauds.Id.Unless
an exclusive profit is granted, the owner of the servient estate
also retains the right to take profits from the land.Herman H. Hahner, An Analysis of Profits a Prendre,
25 Or.L.Rev. 217
(1946).

There
are numerous ways of creating easements.The manner in which the easement is created will
necessarily dictate the scope of the easement and the extent of
the encumbrance on the underlying real property.For example, the grantor of an express easement can specify
the nature, extent and precise location of the easement.In defining the scope of an implied or necessary easement,
the nature, extent and location must be reasonable under the
circumstances.In the
case of a prescriptive easement based upon historic use, the
easement will be limited to the nature, extent and location of the
prior use.In drafting
an express easement, the parties should clearly define the scope
and location of the allowable use at the time of creation.
Otherwise, it may be left to the courts to determine the original
intent of the parties, in hind-sight, when problems arise
regarding the use of the easement.

Certain
federal laws have granted easements for activities that benefit
the public interest.
Congress enacted the Right
of Way Act of 1891, which regulated easements across the public
domain.This Act
granted to ditch and canal companies a right-of-way across the
public lands and reservations.43 U.S.C. § 946.The
sole authorized purpose of such rights-of-way, initially, was
irrigation, but the Act was later amended to include a number of
“subsidiary” purposes such as domestic uses, transportation
and water power.Id.

The Right of Way Act of 1891 creates a
clear easement extending to 50 feet on either side of the actual
banks of the canal or ditch,and
authorizes the holder to use “material, earth and stone” from
adjacent public lands for construction of the ditch or canal.Id. Easements under both the 1894 Carey Act and the Right of Way Act of 1891,
are subject to forfeiture for nonuse.E.E. Eggebrecht, Inc. v. Waters, 704 P.2d 422 (Mont.
1985).

ii.Carey Act

In
August, 1894 Congress enacted the Carey Act, which formally granted the
right to water conveyance easements across the public domain.The Act provides:

Whenever, by priority of possession,
rights to the use of water for mining, agriculture, manufacturing,
or other purposes, have vested and accrued ... the possessors and
owners of such vested rights shall be maintained and protected in
the same; and the right of way for the construction of ditches and
canals for the purposes herein specified is acknowledged and
confirmed....

43 U.S.C. § 661 (1987).

The effect of the Carey Act was to
grant an easement across federal land to the holder of any
vested water right. Once the U.S. government conveyed the land,
no new easements could be created through the Carey Act, but all
existing ones were effectively “grandfathered.” These easements
can be lost or forfeited by nonuse regardless of the intent of
the appropriator. Smith v. Hawkins, 10 Cal. 122, 42 P.
453 (1895)

Noland construed Oregon law to state
that water rights held abandoned for one year or more are open
to relocation and possession by another locator. Noland v.
Coon, 1 Alaska 36 (1890). Some states, such as California,
had their own version of law concerning easements across state
land prior to the Carey Act. Jennison v. Kirk, 98 US
453, 25 L. Ed. 240 (1878).

Carey Act easements
are typically among the older easements in a district’s
portfolio, and the actual water delivery system may be
correspondingly out of date.Districts
may wish to modernize certain features of these older systems –
for example, a district may wish to line an unlined ditch to
prevent leakage.Courts
outside of Oregon have occasionally held such action is not
authorized under current law.See Krieger, 119 Cal. App. 3d 137 (1981).

Case Law Update:

Krieger v. PGE, 119 Cal. App. 3d 137 (1981).

The holder of a Carey Act ditch
easement wanted to line its irrigation ditch with gunnite to
prevent leakage, but the court refused to allow it.The court held that the ditch had to be maintained in the
condition it was in at the time the land was patented.The court reasoned that the easement holder could not now
“expand” the scope of the easement by changing the nature of
the ditch.

Case Law Update:

Hutcheson,
et al. v. Tulare Irrigation District. (Cal. Super. 2000).

The court in Hutcheson granted a preliminary injunction to prevent Tulare
Irrigation District (TID) from going forward with any aspect of
its project to line a canal unless the district had a fee simple
interest in the property traversed by the canal.The nature of the plaintiffs’ enjoyment of the servitude
consisted of increased property value and aesthetic pleasure
resulting from the canal.The
easement granted to TID did not give it the right to line the
canal, thereby expanding the easement and increasing the burden
upon the servient estates.This issue has not been addressed in Oregon.

iii.Federal Land Policy and Management Act Easements.

Finally,
Congress passed the Federal Land Policy and Management Act (FLPMA)
in 1976.Unlike the
Carey Act and the Right of Way Act of 1891, which were direct
easement grants to people utilizing the public domain, FLPMA only
authorizes the executive department to grant easements for the
transportation of water.43
U.S.C. § 1761(a).Vested
rights-of-way were grandfathered under FLMPA (43 U.S.C. §
1769(a)), but federal regulations apply to those preexisting
rights-of-way to the extent that the regulations do not diminish
or reduce any rights conferred by the preexisting grant.43 CFR § 2801.4.Easements
granted under FLPMA have a finite term and must be renewed before
expiration.43 CFR §
2801.1-1(h).Further,
failure to use the right-of-way for a period of five years creates
a rebuttable presumption of abandonment.43 CFR § 2803.4(c).

In
addition to private contractual or common law easements, Oregon
has adopted statutes governing easements for public benefit and
easements across state lands.Under these laws, for example, private property may be
encumbered by easements for protection of natural resources, or
public property may be encumbered by easements for irrigation
purposes.These
materials address a few of the statutory provisions regarding
public easements over private lands and private easements over
public lands.

The
“holder” or “grantee” of these kinds of easements can be
the state or any county, metropolitan service district, city, or
park and recreation district, a charitable entity with the purpose
to protect natural resources and scenic values, or an Indian
tribe.While not
mandatory, the “holder” of the conservation easement may make
and enforce reasonable rules, regulations, orders or ordinances
governing the care, use and management of its conservation or
scenic highway easements.ORS
271.775.

A
property owner who grants a conservation or scenic highway
preservation easement is entitled to a reduction in tax assessed
value based upon the existence of the easement.The easement shall be exempt from assessment and taxation
the same as any other property owned by the particular
“holder.”ORS
271.785.This tax
advantage creates a valuable incentive for the tax payer to
protect the natural resources on the land.

Other
Oregon statutes also look to conservation easements to protect
natural resources on private property.For example, in siting destination resorts, ORS 197.467
requires the developer to grant a conservation easement sufficient
to protect the resource, if a site is designated for protection
under an acknowledged comprehensive plan pursuant to open space,
scenic and historic areas and natural resource goals in an
acknowledged comprehensive plan.

2.Public Easement for Oregon Shore

ORS
390.610recognizes the legislative policy to keep Oregon
beaches accessible to the public.It is the policy of the state to protect the public
interest in unrestricted access to the entire Oregon coast.The State Parks and Recreation Department is charged
with promulgating rules for public use of beach property subject
to public rights or easements declared under ORS 390.610.This includes property that is available for public use,
whether the public easement is obtained by dedication,
prescription, grant, state-ownership, permission of a private
owner, or otherwise.ORS
390.660.Again, the
statute acknowledges the encumbrance of private property for
public benefit.

3.Public Easement for Willamette River Greenway

ORS
390.310-390.368 recognizes the existing uses along the river, as
well as the public interest in preservation of the natural,
scenic, historical and recreational qualities of such lands.The State Parks and Recreation Department has the authority
to acquire easements in the Willamette River Greenway for
exclusive public use for scenic and recreational purposes.The state can acquire these public easements through
voluntary agreements or by eminent domain.However, if eminent domain is used, the easement is limited
to a scenic easement and will not provide public access to the
land for recreational purposes.Furthermore, eminent domain cannot be used to acquire
easements across farm land..

4.Water-Related Easements

Water
companies organized under an 1891 act are granted an easement
across state lands for the ditches, canals, flumes, distributing
ditches, and feeders of any corporation appropriating water under
the provisions of the Act of 1891, across all lands belonging to
the State of Oregon and not under contract of sale, is granted.
ORS 541.030.

Similarly,
and more inclusively, the State granted an easement across school,
submerged and swamp lands “for construction of a water ditch to
be used for irrigation, manufacturing or mining purposes, ditches
or water pipes for conveying water to political subdivisions for
domestic purposes, or for the extinguishment of fires, is granted
for a distance of 25 feet on each side of such ditches or water
pipes to any person who may construct such water ditches or water
pipes over any submersible, swamp or school lands.”ORS 273.761.

Irrigation
districts have been given broad statutory authority for the
acquisition of easements necessary for the district’s irrigation
system.If a landowner
is unwilling to grant a right of use for irrigation purposes, the
district has condemnation authority to acquire easements that are
necessary for the conveyance and distribution of water.ORS 545.239.These statutory provisions protect the private interests of
irrigation districts with respect to acquiring easements across
public lands.

Generally,
easements are created by express grant or reservation.Easements are perpetual unless they are expressly limited,
or terminated by agreement, abandonment, implication (e.g.
necessity ceases to exist), adverse possession, or another means
of formal termination.Furthermore,
because an easement is an interest in land, the statute of frauds
requires that it be in writing to be enforceable.ORS 41.580 (1) (e).

Express
easements can be created by additional grants in deeds, by
reservations in deeds, or by separate documents.They must be properly acknowledged before a notary in order
to be recorded.ORS
93.710 (1).While
recording is not necessary for validity, the recorded easement
provides constructive notice to third parties that the easement
exists.ORS 93.710
(1).

It
is essential to define the exact location and scope of the
allowable uses in the document creating the easement.If the language is unambiguous and clearly defines the
location, nature and extent of the easement, the document will
stand on its own, and a court will not have to look to the intent
of the original parties in resolving a subsequent dispute. Tipperman
v. Tsiatsos, 327 Or. 539, 964 P.2d 1015 (1998) (court first
looks to the written instrument, then, only if there is
uncertainty or ambiguity, the court will look beyond the wording
to the intent of the original parties).

2.Easements
by Implication

Easements
can also be created by implication, through prior use, necessity,
or inclusion on a plat.An
implied easement is created when an interest in land is conveyed
that does not contain an express easement but one is implied as an
intended part of the transaction. Tyska v. Prest, 163 Or.
App 219, 928 P.2d 392 (1999), citing, Hayward v. Ellsworth, 140 Or. App 492, 498, 915 P.2d 483 (1996).

The
factors that are important in determining whether an implied
easement exists are found in 5 Restatement of Property § 476: "(a) whether the claimant is the conveyor or the conveyee,
"(b) the terms of the conveyance, "(c) the consideration
given for it, "(d) whether the claim is made against a
simultaneous conveyee, "(e) the extent of necessity of the
easement to the claimant, "(f) whether reciprocal benefits
result to the conveyor and the conveyee, "(g) the manner in
which the land was used prior to its conveyance, and "(h) the
extent to which the manner of prior use was or might have been
known to the parties." See Thompson v. Schuh, 286 Or.
201, 212, 593 P.2d 1138 (1979)."

A.Apparent or Prior Use

If an owner of property sells part of the land to
another and there was a previous, apparent use that is important
for the enjoyment of the parcel that the common owner sold (e.g.
access to water on the adjoining parcel or use of a roadway for
access), the courts may imply that the purchaser received an
easement, measured by the pre-existing use, over the parcel that
the common owner retained. The primary factor is whether a
reasonable purchaser would be justified in expecting the easement
under the circumstances.There
must be a reason for assuming that a right to continue using the
quasi-easement is part of the bargain. Garrett
v. Mueller, 144 Or.App. 330, 927 P.2d 612 (1996), citing,Dressler et al v. Isaacs et al, 217 Or. 586, 596-99, 343 P.2d 714 (1959).

The intent of the parties is inferred from the
circumstances under which the conveyance was made.Implied easements are not favored by the Courts, and the
party claiming the easement has the burden to prove its existence
by clear and convincing evidence. Cheney v. Mueller, 59 Or.
108, 485 P.2d 1218 (1971); Jack v. Hunt, 200 Or. 263, 264
P.2d 461(1953).

B.Necessity

If a grantee has no other access to property other
than across the grantor’s land, a common law easement by
necessity may arise through implication.If an easement is implied based solely on necessity (e.g.
access to a landlocked parcel), the easement terminates as soon as
the need for it expires (e.g. alternate access is acquired).

If a grantee has no common law remedy available,
there is a statutory “way of necessity” under ORS 376.150 to
376.200.ORS 376.150
(2) provides that "[w]ay of necessity" means:(a) A road established under ORS 376.150 to 376.200 to
provide motor vehicle access from a public road to land that would
otherwise have no motor vehicle access; or (b)
A route established under ORS 376.150 to 376.200 to provide
utility service access from an existing service location to a
service point that would otherwise have no utility service access.

Statutory
easements by necessity are disfavored and difficult to establish
because the grantee must prove that there is no existing,
enforceable access to the subject property and such access could
not be obtained by some other legal action.Chambers v. Disney, 65 Or.App. 684, 672 P.2d 711
(1983) (way of necessity may not be established if petitioner
could acquire easement through other legal action).

C.Plat Reference

When property is conveyed by reference to lots on a
recorded plat, the purchaser acquires an implied easement for the
use of the dedicated streets, parks, or other open areas shown on
the plat.See Carter
and Mason v. City of Portland, 4 Or. 339 (1873); see also Nodine
v. City of Union, 42 Or. 613, 72 P. 582 (1903).

3.Prescription

The requirements for establishing a prescriptive
easement are similar to those for adverse possession.To obtain a prescriptive easement, a plaintiff must show
use of the land as though it were an easement for ten years in an
open and notorious manner that is continuous and adverse to the
rights of the servient owner. Nice v. Priday, 149 Or.App.
667, 945 P.2d 559 (1997), review denied 327 Or. 82, 961 P.2d 216
(1998), citing Thompson v. Scott, 270 Or. 542, 546, 528
P.2d 509 (1974). ORS 12.050 establishes the 10-year period.

When a prescriptive easement claimant has established
open and continuous use for a 10-year period, a presumption arises
that the use was made under a claim of right or in a manner that
was “hostile” to the interest of the owner of the underlying
property.See R
& C Ranch, LLC v. Kunde, 177 Or.App. 304, 33 P.3d 1011
(2001), citing, Feldman v. Knapp, 196 Or. 453, 250 P.2d 92
(1952).The burden of
proof then shifts to the property owner to rebut the establishment
of a prescriptive easement by showing that the use was permissive.The presumption of hostility or adversity may be rebutted
by proving that the claimant was merely using an existing road
that did not interfere with the defendant's use or by proving that
the use was permissive in some other way. Beebe v. DeMarco,
157 Or.App. 176, 180, 968 P.2d 396 (1998);Arana v. Perlenfein, 156 Or.App. 15, 20-21, 964 P.2d
1125 (1998); House v. Hager, 130 Or.App. 646, 651, 883 P.2d
261, 320 Or. 492, 887 P.2d 793 (1994).

The prescriptive easement is “created,” by
operation of law, once all the elements have been satisfied,
including the open, notorious, continuous and adverse use for a
10-year period.However,
if the servient estate holder is unwilling to recognize the right
of use, the holder of the prescriptive easement may have to file a
law suit to have a court declare that all the mandatory criteria
have been satisfied.

Unless
the instrument creating an easement expressly creates an exclusive
easement, the rights of the easement holder are nonexclusive.The owner of the underlying land (the “servient owner”)
may make any use of the land that is consistent with and does not
unreasonably interfere with the rights of the easement owner.Ericsson v. Braukman,
111 Or. App. 57, 62, 824 P.2d 1174 (1992) (servient estate owner
may place gate across road easement).

The
rights of the easement holder and the servient landowner are
relative to each other, not absolute.If the use by the servient landowner was or should have
been contemplated by both parties when the easement was created,
it is considered a type of use that is reasonable and should be
allowed.The courts
look to the express words used in the easement to determine what
respective uses were contemplated.Minto v. Salem Water, Light & Power Co., 120 Or. 202, 250 P. 722
(1926) (deed restricted water company to underground improvements,
and court refused to allow surface water intake facilities like
pump house, pond and ditches).

The
servient owner can also authorize others (e.g., lessees) to use
the land subject to the easement if there is no interference with
the rights of the easement holder.This means, for example, that the underlying property owner
theoretically could authorize use of a canal right-of-way for a
power line or other utilities without the consent of the
irrigation district if there was no interference with the canal.It also means the land owner could subdivide his or her
land for residential development, but only if that could be
accomplished without unreasonable interference with the purpose of
the easement.

Chevron owned an easement for an
interstate petroleum products pipeline.The pipeline was buried at depths varying from 1.5 feet to
3.5 feet.DeRoest
acquired the servient estate and placed fill on it until the
pipeline was 10.5 to 22.5 feet deep.DeRoest also parked heavy equipment on the easement.The court noted that a rider to the easement recognized
that the servient estate was used as a sawmill and lumber was
stored on the easement.In
light of this, the court refused to enjoin the fill and equipment
parking even though it increased Chevron’s “costs, access
time, safety risk and liability exposure.”DeRoest’s use did not interfere with Chevron’s use in
any way not contemplated when the easement was granted.One factor swaying the court was that DeRoest’s infilling
of the pipeline took place gradually over a long time, during
which Chevron did not complain.Thus, one lesson of the case is that districts should
monitor potential encroachments and not “sleep on their
rights.”

Unless
expressly limited in time, an easement continues until terminated
by abandonment or one of the other termination methods discussed
below.Irrigation
districts should make sure when they acquire new easements that
the written agreement specifically states that the term is
perpetual and states, as clearly as possible, the types of
conditions that would constitute abandonment.

An
easement does not convey the unlimited right to use the covered
property.The rights
of the easement owner are measured by the purpose and character of
the easement.The use
of the easement is limited to the use that is reasonably necessary
and convenient for the intended purpose of the easement.Of course, the intended purpose is not always clear from
the easement language itself.Interpreting an easement often requires an investigation of
the intentions and circumstances of the parties at the time of the
original grant or reservation.These interpretative problems are particularly difficult
with irrigation easements since many of them are very old and the
character of the areas where they exist has changed dramatically
in recent years.

Generally,
unless the easement contains an express statement to the contrary,
use of an easement may be adjusted to conform to newly arising
needs that the parties reasonably should have expected to develop
in the natural use of the land under the easement.This principle is limited, however, by the rule that an
easement owner may not materially increase the burden or impose
new burdens on the underlying landowner.Balancing these concerns is not always easy.

Case
Law Update:

Jewell
v. Kroo, 268 Or. 103, 517 P.2d 657 (1973).

The Jewells owned property for which a
spring supplied irrigation water.A prior owner granted a neighbor the right to use 500
gallons per day from the spring.The spring was located in a ravine; its water was retained
by a rock and earthen dam that was three feet high.The Kroos bought the neighboring property and wanted to use
the spring under the terms of the earlier agreement.To do so, they removed the rock dam and replaced it with a
much taller concrete dam, all without the Jewells’ permission.The court found that a larger reservoir was required to
enable full use of the 500 gallons per day, and the changes made
on the Jewells’ land were consistent with and necessary for the
Kroos’ use.

Case Law Update:

Kell
v. Oppenlander,
154 Or.App. 422, 961 P.2d 861 (1998).

A property owner
filed a quiet title action, claiming that a neighbor's conversion
of a garage structure terminated the written easement agreement
covering the garage. The court held that the written easement
agreement did not automatically terminate if the garage owner
converted the space to a different use.Written easement agreement would terminate only on removal
of garage, not upon its different use.

State
courts are split on whether an irrigation district acts within the
scope of its easement when it upgrades its ditches by lining them
with concrete or gunnite to reduce leakage.Compare Krieger v. Pacific Gas & Electricity, 119 Cal. App. 3d
137, 173 Cal. Rptr. 751 (1981) (outside scope of easement) with Papa v. Flake, 503 P.2d 148 (Ariz. Ap. 1972) (within scope of
easement); see Sierra Club
v. Hodel, 848 F.2d 1068, 1083 (10th Cir 1988)
(holding that county may widen road under vested federal road
right-of-way because widened road was “reasonable and necessary
for the type of use” to which road had been put at time of
vesting).

In
sum, all the circumstances surrounding the creation of an easement
will be examined before a variation will be permitted.Technological and economic changes may well provide a basis
for enlarging permitted uses, but irrigation districts should
carefully analyze the situation before taking any action.

When
the location of an easement is not specified in the document
creating it, the location may be determined by how the parties
have actually used the land since the easement was created.The guiding principle in such cases is that an ambiguous
instrument will be interpreted in light of the practical
construction given to it by the parties.

Sometimes
the instrument creating the easement simply describes the land
that it affects with no attempt to specifically locate the
easement.This is
called a “blanket” easement.See Spear v. Cook,
8 Or. 380 (1880).Reserved
easements in federal patents were always blanket easements.The rule in such cases is that unless the owner of the
underlying servient estate locates the easement, the owner of the
easement may do so in a manner that will accomplish the intended
purpose with reasonable, minimum levels of damage or interference
to the servient estate.

Case Law Update:

Spear v. Cook, 8 Or. 380.

Spear sold to Cook all the water in
Spear Creek, along with an easement to convey the water across
Spear’s land.The
easement deed gave Cook the right to build, maintain and operate
“all claims, ditches pipes, aqueducts, or flumes necessary and
proper for the conveyance of said water to the premises of
[Cook].”Cook
initially built a six-inch wood flume on small trestles across
Spear’s property that could carry only a portion of the waters
of Spear Creek.Spear
had no problem with this.Three
years later, however, Cook built a much larger flume with a
walkway wide enough for people to walk along, nailed in places to
Spear’s trees.Cook
began floating wood down the new flume.The wood often jammed in the flume, causing water to spill
over and damage Spear’s property.Spear sued and lost.On
appeal, the Oregon Supreme Court affirmed.The main reason for the affirmance was the very broad
easement language, which contained no limits on the location, type
or use of the water conveyance.The court held that Spear had to live with the new flume
and was entitled to an award only for actual damage caused to his
trees and property.

Irrigation
ditch owners typically need to enter onto the property across
which the ditch flows to inspect it and, if necessary, repair it.Such rights are sometimes referred to as “secondary
easements,” see Clesson S. Kinney, A
Treatise on the Law of Irrigation and Water Rights § 990 at
1750 (1912), and their nature and scope are generally matters of
common law.

The
right and duty to maintain and repair an easement generally rests
on the party receiving the benefit from the easement.Unless expressly forbidden, easements are presumed to
include the right to enter the landowner’s property for purposes
of inspection, maintenance and repair of the easement.Carson v. Gentner, 33 Or. 512, 52 P. 506 (1898).Such rights are subject to the limits discussed in the
preceding section on “permitted uses.”The servient owner may be required to aid in the
maintenance of the easement as well.

Case
Law Update:

Tipperman
v. Tsiatsos,
327 Or. 539, 964 P.2d 1015 (1998).

The court held that
an owner of land through which a creek flowed could reasonably be
required to construct a second water gap in a riparian fence as
well as a second access corridor running from adjacent land to
water gap.This was
based on a 1909 deed which reserved to the adjacent owners'
predecessors in interest the right of "free access" for
livestock pasturing on their land to waters of creek.

The
easement holder’s failure to maintain and repair an easement
violates the rights of the servient owner.If both a servient owner and an easement holder contribute
to the damage of the easement, contribution for the costs of
repair and maintenance is allowed.A frequent problem in allocating maintenance and repair
obligations between several users arises when the easement is
damaged by casualty and not by any party’s particular fault.

Case Law Update:

Carson
v. Gentner, 330 Or. 512.

In 1876, Carson took control of a ditch
across state-owned “school” lands and used it to divert water
for mining purposes.In
1883, Gentner settled on the property and subsequently obtained a
homestead patent from the state.The patent did not contain an express reservation of water
and/or ditch rights.In
1892, Gentner refused to let Carson on Gentner’s property to
repair the ditch.Carson
sued to enjoin Gentner from interfering with Carson’s ditch
rights, and won.On
appeal, the Oregon Supreme Court affirmed.The court held that Carson had a vested ditch right under
an Oregon statute similar to the Carey Act (see present-day ORS
273.761) and held that the right was not dependent on any express
reservation in a deed to the patentee.

A
transfer of the servient property to a third party does not free
the property of the burden of the easement unless the grantee is a
bona fide purchaser without knowledge or actual constructive
notice of the servitude.A
purchaser of the servient property and other third parties
automatically have constructive notice of easements properly
recorded in the deed records.ORS 93.710.A
purchaser also will be considered to be on notice of any existing
servitudes that would be apparent from a physical inspection of
the property.Silvernale
v. Logan, 252 Or. 200, 206-07, 448 P.2d 530 (1968) (parties
are charged with constructive knowledge of easement if they should
have known, “by using reasonable observation and
intelligence,” that property was subject to easement).Thus, a purchaser would likely take title subject to
unrecorded easements for such things as pipelines or ditches when
the existence of such easements might be inferred from inspecting
the property.Recording
is a crucial step in protecting easement rights.

An
easement appurtenant is automatically transferred by a transfer of
the estate, or portion thereof, to which it is appurtenant.Such an easement cannot be transferred independently of the
dominant estate.

Case
Law Update:

Braat
v. Aylett, 278
Or. 549, 564 P.2d 1030 (1977).

The petitioner was
granted a perpetual right of way through a gateway, and was
concerned that if the gateway were restricted to a perpetual right
of way, it would terminate on his death or upon a sale of the
property. The statute, ORS
376.115, provides that orders granting a way of necessity
shall 'declare the road or gateway to be a public road or a
perpetual right of way.'A
perpetual right of way is an easement of perpetual use.Such a right one which is appurtenant to the land, and if
the dominant estate is sold or otherwise transferred to another,
the easement over the servient land is transferred as well.

When
a dominant estate is subdivided, each grantee is given a right to
all appurtenances.Therefore,
an easement that was appurtenant to the entire property will
continue to be appurtenant to each of the subdivided parcels.An increase in the burden on the servient estate that might
unreasonably interfere with the servient owner’s rights,
however, would not create easements identical to the underlying
easement.In such
instances, unless specifically provided otherwise, the underlying
easement is apportioned between the grantees in proportion to the
conveyance to each.See
Ruhnke v. Aubert, 58 Or. 6, 113 P. 38 (1911) (water right
passes in same proportion as land sold bears to entire tract).

Like
other property interests, easements may be used as collateral for
loans and other financing arrangements.For instance, an irrigation district may wish to assign a
security interest in its easements, along with other property, in
order to secure financing for project improvements.Such agreements usually give the holder of the security
interest a right to take possession of the collateral in the event
of a default under the loan.Sometimes
districts actually transfer title in easements to the financing
institution, under an agreement allowing the district to continue
to use the easement and providing that upon full repayment of the
loan the easements will be reconveyed to the district.Because such conveyances may not be automatic, districts
should always be aware of any parties that may have a lien,
security interest, or title in their easements, and should seek to
extinguish such interests as soon as the underlying loans are
repaid.

Generally,
abandonment occurs only when an easement holder manifests the
intent to relinquish the servitude by affirmative conduct.An oral or written statement by an easement holder that the
holder intends to give up the servitude does not satisfy the
affirmative conduct standard.However, expressions of intent may be introduced to
interpret other conduct by an easement holder.Moreover, an easement holder’s statement relinquishing
the holder’s rights may serve as a basis for terminating an
easement on an estoppel theory if the servient owner detrimentally
relied on the statement.In
addition, the holder’s statement of an intent to abandon may
constitute a release of the servitude if it meets the requirements
of the Statute of Frauds for conveying an interest in land.Jon W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land, 10-43 - 10-45, (West
Group 2001).

2)Permanent,
Temporary and Renewable rights

(See Section IIC OWRCW – page 9)

An
easement is extinguished when its stated duration has expired or
when the specific purpose for which it was granted no longer can
be served by its continued existence.In addition, certain easements may be canceled by the
landowner if the easement holder has breached a material term of
the easement document.

An
easement by prescription will not be extinguished as a result of a
change in its use alone, but the prescriptive easement will be
extinguished when the change in use puts too great a burden on the
servient estate, when it is too different in nature and character
from the original use, or when the purpose that the easement
serves for the easement holder is greatly changed.

An
easement can be extinguished by a conveyance, similar in form to a
conveyance granting an easement, in which the easement holder
releases his or her interest in the servient estate.Because an interest in land is being conveyed, the release
should be written and should comply with the formalities of the
statute of frauds.If,
however, an easement holder orally releases the servient estate
and the owner of the servient estate, in reasonable reliance,
substantially changes his or her position to his or her detriment,
then the oral release will be binding on the easement holder.The easement holder in that event is equitably estopped
from denying the release.

3)Merger

If
the dominant owner obtains title to the servient estate, the
easement will end through the doctrine of merger.The marketability of the property may be reduced unless the
easement is renewed or retained.

4)Forfeiture
and Abandonment(See
Section IIC OWRCW – page 9)

An
easement ceases to exist when it is abandoned.This does not mean, however, that a person must make
continuous use of an easement once the interest is created.Abandonment occurs only if there is evidence of an intent
to permanently abandon the easement.A variation in the use made of the servient estate by an
easement holder does not necessarily indicate that intent.Nonuse, alone, is insufficient evidence of an intent to
abandon.

Curb and bushes
installed by neighbors did not demonstrate an intention to abandon
an easement across landowner's property as it did not render
access to easement impossible or so impractical as to be virtually
impossible.There was
testimony that vehicles could drive through the bushes and use the
easement, and that neighbor's service vehicles had in fact used
the easement on several occasions to spread bark-dust and perform
maintenance on the rear side of their building.In order to show abandonment, easement holders must have
expressed or manifested an intent to make no further use of the
easement.

If
the need to use an easement has not yet arisen, the easement will
not be deemed abandoned by the mere passage of time.However, nonuse is relevant evidence of intent to abandon,
unless the nonuse is due to forces beyond the easement owner’s
control.Jon W. Bruce
and James W. Ely, Jr., The
Law of Easements and Licenses in Land ¶ 905 [2] at 9-32
(1988).Nonuse of
substantial duration may give rise to the inference of an intent
to abandon.A greater
degree of evidence will probably be required to establish
abandonment when such a finding may result in forfeiture of a
valuable right.

An
easement of necessity is extinguished when the necessity on which
it is based ends.The
concept of an easement of necessity is designed to further the
public policy of favoring productive use of land by providing
access to landlocked parcels.Once other adequate access becomes available to the parcel
in question, there is no public policy reason for the continued
existence of the easement of necessity.Consequently, the servitude expires by operation of law.Jon W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land, 10-18 - 10-19, (West
Group 2001).

Case
Law Update:

Cotsifas
v. Conrad, 137
Or.App. 468, 905 P.2d 851 (1995).

The owner of an
easement initiated an action to enjoin the owner of the servient
tenement from interfering with the continued use of the easement
for ingress and egress. The servient owner counterclaimed for a
declaration that the easement was no longer necessary due to the
pavement of an alternative route.The court held that lack of necessitydid
not terminate the express easement, and that paving of a public
way did not render continued vehicular use of the easement
unreasonable.The
alternative public route had existed in unpaved form since the
existence of easement.Therefore,
the easement for ingress and egress was not limited to an easement
by way ofnecessity because the easement had never been the sole means of ingress and
egress.

7)Eminent
Domain

An
easement is terminated when a public authority condemns the fee to
the servient estate for a purpose that conflicts with the
continued existence of the servitude.Condemnation of an easement or other interest in the
servient estate also extinguishes an existing easement to the
extent that the easement or other interest created by condemnation
is inconsistent with utilization of the existing servitude.For example, an easement may be condemned for a limited
access highway that bisects an existing private roadway easement.Further, a public authority may own land subject to an
easement and simply condemn the easement itself in order to rid
the servient estate of the burden of the servitude.Similarly, a governmental entity may exercise its power of
eminent domain to acquire an existing easement in order to use the
easement for public purposes.

Whenever
an easement is terminated by condemnation, the easement holder is
entitled to just compensation.However, controversy often arises as to the value of the
easement for purposes of determining the amount of compensation
due the easement holder.Courts
must consider a variety of issues in litigation over the amount of
compensation to which an easement holder is entitled.Special compensation problems arise with respect to the
condemnation of existing easements of access to public roads.

The
Oregon Department of Transportation (ODOT) has the power to
regulate access to a highway in the interest of the public for the
protection of the highway or road and the traveling public.ORS 374.305 to 374.325.ODOT’s powers shall not be exercised so as to deny
reasonable access to any property adjoining the highway or road.ORS 374.310(3).ODOT
has adopted administrative rules governing access management.OAR 734-50-0010, et
seq.

The court affirmed a summary judgment
in favor of ODOT in a condemnation case where a guardrail
eliminated the existing highway access to a property.The court held:“Generally,
any act by the state that affects the use of a highway for
legitimate ‘highway’ purposes does not result in a taking of
access rights to the highway that is compensable under Article I,
Section 18, even if that action interferes with the abutting
property owner’s access to the highway from the property.” The
court noted, however, that several Oregon Supreme Court cases
support a taking claim where the interference with access was not
intended to serve a legitimate highway purpose.The case was not ripe for adjudication because plaintiffs
had only applied for one access permit (that was denied) to reopen
the old road.They had
not shown that ODOT had denied them all reasonable access, nor
that alternative applications would be futile.The court left open the issue of whether eliminating all
reasonable access would amount to a compensable taking, however,
it characterized highway access control as a regulation of the
State’s own property, rather than an acquisition of private
property.

Thus,
the case suggests that denial of a highway-access permit from an
easement, based on “a legitimate highway purpose,” generally
would not be a compensable taking.However, if the only purpose of an easement is for access
between the highway and the dominant estate, and there is proof
that no other access from that easement could be obtained, there
may still be a claim for taking all economically viable use of the
property interest in the easement.(See Hanson, below).

Case Law Update:

ODOT v. Dupree, 154 Or. App. 181, 961 P.2d 232 (1998).

This condemnation case reaffirmed Curran,
and held that a reduction in value of abutting property
attributable to legitimate restrictions on highway access is not a
compensable taking.This
case weighs against the likelihood of success of a takings claim
based on the State’s denial of highway access from an abutting
easement.(But see Hanson,
below).

The State owned property along a
highway subject to an easement, reserved to Hanson’s estate for
highway access.When
the State condemned part of Hanson’s property to widen the
highway, Hanson applied for a permit for access at the easement
location, which was denied.The
court upheld a jury award to Hanson for inverse condemnation on
the theory that Hanson had lost a property right “to a
particular route of access.”The court held that the state’s denial of Hanson’s
application for a permit to use their easements effectively
rendered the easement valueless, which constituted a taking.The court noted the difference between a common-law right
of access at an unspecified location and an easement for access at
a specified location.

8)Discontinuation
of Public Rights of Way

In
Oregon, one governmental entity may not generally condemn property
already devoted to a public use if the proposed use destroys or so
interferes with the existing use of the property that it
functionally destroys the existing use.The condemnation of public property in such situations is
permitted only where the legislature has expressly or implicitly
authorized the acquisition.See
Little Nestucca Road Company v. Tillamook County, 31 Or. 1, 6,
48 P. 465, 465 (1897); see also Emerald
People’s Utility District v. P.P. & L., 302 Or. 256, 729
P.2d 552 (1986) (PUD could condemn a privately owned hydroelectric
facility already dedicated to public use where statutory language
expressly vested PUDs with that power); and Pacificorp v. city of Ashland, 88 Or. App. 15, 744 P.2d 257 (1988).

There
is an exception to this rule where the sovereign itself is seeking
to acquire public property for its own purposes.In such cases, courts have found that no legislative
authority is required for the State to exercise its power of
eminent domain.See
State v. Mohler, 115 Or. 562, 577, 237 P.690, 695 (1925)
(distinguishing exercise of inherent power of eminent domain by
sovereign from exercise of power by a third-party to whom it has
been delegated).

Where
condemnation of public property by a governmental entity other
than the sovereign is permitted by statute, the original owner is
generally entitled to receive compensation.The entitlement to such compensation arises under the
constitutional protections of Article I Section 18, which have
been extended to certain categories of public property or
improvements upon the property by the owner.See Little Nestucca
Road Company v. Tillamook County, 31 Or. 1, 6-7, 48 P. 465,
466 (1897) (County may not condemn toll road from toll company for
county road without first paying fair value for the road).

These
same constitutional protections are not generally extended when
the sovereign acquires public property used strictly for public
use.See
Portland & Willamette Valley Railroad Co. v. City of Portland,
14 Or. 188, 193, 197, 12 P. 265, 267, 269 (1886) (property for
which compensation is required does not include public streets or
public places which the city could not sell or use for other than
public purposes). However,
public property held in a proprietary capacity is subject to
constitutional protections due to its quasi-private character.Other jurisdictions have found that this category of
property includes that used to supply a municipality with
necessities such as water, gas, and electricity.See e.g., Reclamation
District v. Superior Court, 171 Cal. 672, 680-681, 154 P. 845
(1916).

Under
this line of cases, an irrigation district is arguably protected
under Article I, Section 18 from uncompensated condemnation of its
easements and rights of way by ODOT or other government entities
(other than the sovereign itself), since it holds such easements
in a quasi-private capacity.The
condemning entity would have to compensate the irrigation district
for the taking.

9)Release
or Renunciation

An
easement terminates when its holder releases all rights in the
servitude to the owner of the servient estate.It also has been held that a profit holder may extinguish
the profit by unilaterally surrendering the interest to the owner
of the servient estate.Jon
W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land, 10-30, (West Group
2001).

Because
an easement is an interest in land, a release of the easement must
be in writing in order to comply with the Statute of Frauds.Although an oral release is unenforceable, it may play a
role in terminating the easement under the abandonment doctrine by
providing some evidence of the holder’s intent to abandon.Id at 10-31.Similarly, an oral release may be significant in
extinguishing the easement on an estoppel theory if it is
detrimentally relied on by the servient owner.Id.

10)Transfer
of Title to Bona Fide Purchaser Without Notice

The
recording system may operate to terminate an unrecorded easement
when the servient estate is conveyed to a bona fide purchaser
without notice.Whether
a prior unrecorded easement is terminated in such a case depends
in large measure on whether the servitude was created by express
provision, by implication, or by prescription.Id at 10-74.

Easement
holders have certain duties toward third parties who enter lands
covered by the easement.The
scope of these duties depends upon whether the third party has
been invited for some business purpose of the easement holder
(i.e., a party constructing a new diversion structure) or is
merely allowed or not prohibited from crossing the land (i.e.,
where a commonly used path follows an irrigation ditch).Generally speaking, an easement holder’s only duty of
care toward licensees is not to willfully injure them; on the
other hand, for invitees the easement holder must take precautions
to avoid any reasonably foreseeable injury.Martin v. Houser,
299 F.2d 338 (9th Cir 1962).Irrigation districts are advised to be aware of any third
parties who use the land subject to the easement, to determine
whether these parties are invitees or not and to take appropriate
steps if there are any potentially dangerous features of the
irrigation ditch or other facility.

Case Law Update:

Martin
v. Houser, 299 F.2d 338.

Houser owned an easement across
Martin’s farm and had constructed an irrigation ditch upon it.Martin’s son was chasing a stray cow on a path along the
bank of the ditch, tripped and fell into the diversion structure,
injuring himself.Martin
sued the easement holder and lost.The court held that Martin and his son were not
“invitees” of the easement holder; rather, at most, the
easement holder simply did not forbid them to travel in the
easement on the path above the ditch.Martin and his son were thus mere “licensees,” and as
such, Houser owned them only a duty not to willfully injure them.As that clearly had not occurred in this case, Houser was
not liable.

Easements
on private lands are governed by state law and are subject to
state regulation.An
irrigation district’s use of such easements may be regulated in
the same way its use of any of the rest of its property is
regulated.The main
limits to such regulation are the takings clauses of the Oregon
and U.S. Constitutions and the limits on unreasonable agency
action found in the state and federal administrative procedures
acts.As many
districts are aware, these limits are not illusory, and they are
not particularly stringent.

A
somewhat more complex problem arises when federal agencies attempt
to regulate irrigation district’s use of rights-of-way granted
by the federal government.In
such cases, districts argue that they have vested or
“grandfather” rights to continue to operate the easement
exactly as they did at the time it vested.Unfortunately, this overstates the case.Courts that have considered the matter have held that
federal right-of-way holders are subject to “reasonable
regulation” by federal agencies, regardless of when the
right-of-way was acquired.See,
e.g., Adams v. United States, 3 F.3d 1254 (9th Cir
1993) (holding that “Forest Service still has the authority to
reasonably regulate” a vested Carey Act water easement); Grindstone
Butte Project v. Kleppe, 638 F.2d 100 (9th Cir
1981); Elko County Board of
Supervisors v. Glickman, 909 F supp 759 (D. Nev. 1995).In Elko County the
court added that regulations that prohibit the use of an easement,
or are so stringent as to amount to prohibition, are not
“reasonable.”909
F. Supp. at 764 (citing United
States v. Doremus, 888 F.2d 630, 632 (9th Cir
1989)).

Case
Law Update:

Elko County Bd. of Supervisors v. Glickman, 909 F.Supp 759.

A group of
landowners and ranchers in Elko County Nevada sued the U.S. Forest
Service, seeking to enjoin its interference with the landowners’
use of 1866 Act ditch rights across national forest land.The landowners had attempted to maintain and improve
century-old diversion facilities at springs located in the
Humboldt National Forest.The
government brought misdemeanor charges against some landowners and
allegedly threatened others with criminal prosecution.The U.S. District Court for Nevada denied the irrigators’
requested injunction and held that even assuming the ranchers had
valid 1866 Act rights-of-way, they were still required to obtain a
special use permit from the Forest Service before performing any
ditch maintenance or improvement in the national forest.The court did note, however, that the U.S. Forest Service
was not at liberty to prohibit the ranchers from exercising their
vested rights or to regulate them so strictly that a de facto
prohibition was imposed.

Irrigation
districts are advised to consult with counsel before entering into
easements and related agreements.The following list of issues should, however, allow
district managers to do an initial review of proposed easement
documents and to spot important issues that need the attention of
legal counsel.

Decide
whether an easement or a fee conveyance is desired.Use of the word “easement” will support a finding that
the conveyance is of an easement rather than a fee.Use of the word “grant” rather than the word
“convey” will avoid implying a fee conveyance.

The
signature of the grantor of an easement must be acknowledged for
the document to be recorded.Inserting
an acknowledgment blank into the draft easement will assist in
meeting this requirement.

Consider
creating exceptions for encumbrances against the servient estate
or excepting all existing rights and matters of record if the
easement is granted without a title examination.

This
can be accomplished in “recitals” or in a separate
“Purpose” section.These
statements can be helpful in dealing with unforeseen situations
that may arise in the future.See Minto v. Salem Water, Light & Power Co., 120 Or.
202, 205 P. 722 (1926)..

The
easement should state whether it is intended to be appurtenant
(and therefore inseparable from the land in subsequent transfers)
or in gross (separable from the land, but subject to restrictions
on subsequent assignments).If
appurtenant, the dominant estate should be described; for
irrigation districts, this may be as broad as the district
boundaries.

If
the easement is intended to be personal and nontransferable, the
document should state this.Irrigation
easements are generally more useful if transferable.

If
reference is to a map or plat, attach or incorporate the document
or determine that it is a matter of record.A diagram drawn to scale and attached to an easement is
generally a useful aid in locating the easement.

Easements
covering strips of land are often described as a given width on
each side of a described centerline.What width?Enough
width should be included for construction and maintenance of the
water conveyance.In
addition, the full legal description of the servient land should
be set forth.

If
any relocation of the easement is to be allowed, the document
should describe its scope and the authorized process for so
relocating it.

Was
any cash or other consideration given for an easement?If so, specify this in the document (the exact price need
not be given if that is of concern).The extent of consideration may affect a court’s
willingness to construe an easement broadly or strictly in the
future.

The
easement should state which party has the obligation to maintain
and repair the easement area.If damage will occur to the servient estate by initial
construction contemplated by an easement, the document should
describe which party has the obligation to pay for the damage.Generally, irrigation districts will want to assume full
responsibility for keeping their ditches in good condition and
will want unlimited access rights to be able to do so.

Easements
are not taxed separately.The
parties should decide whether the landowner will continue to pay
taxes for the land covered by the easement or whether the district
will pay a pro rata share of those taxes.

If
not specifically stated otherwise, remedies for misuse are
probably limited to injunctive relief and damages, but not
termination of the easement.If
additional remedies such as a right of termination for breach or a
duty to arbitrate disputes or disagreements, are desired, they
should be included expressly.

It
is not possible to maintain or protect rights one does not know
one has.Therefore,
the most basic step in protecting easement rights is to perform an
accurate inventory of such rights.This may require a review of an irrigation district’s own
files as well as of relevant county and federal records.Then a comprehensive record-keeping system should be
established to allow districts to monitor and maintain their
rights.

This
section advises irrigation districts on how to work with their own
records, county records, federal agency records and archival
materials.It also
discusses the appropriate use of title companies and others to
assist in searches.Some
consideration is also given to searching federal records in
Washington, DC.The
search strategy and available resources will vary depending upon
whether the property interest is on private, state or federal
land.These different
situations are summarized in the following diagram.

Irrigation
districts should begin by reviewing their own records for patents,
conveyances of water rights, easements, deeds, title insurance
policies and maps covering the irrigation system.If an in-house index of documents is available, use it as a
reference source.

Ideally,
easement documents should be indexed by location (section,
township and range).If
your district does not have an index, you should consider creating
one.As an effective
means of creating an index, organize your easements in the
following format:

Name
of Grantor

Tract
(Lateral & Map No.)

Location
(Section, Township & Range)

Recordation
(Book/Page or Document No.)

Applegate,
Larry

N4B,
379

15,
5N, 1W

95-0514920

Ideally, the index
would be kept in a computer spreadsheet program, and each entry
would have additional information about the easement terms, such
as its size, exclusivity, and any limits on its use.

2.Step 2 – Title Company Records.

a.Tract Indexes.

Title
company records are normally maintained by a systematic
compilation of recorded documents (a “plant”) that are
organized and referenced in tract indexes.The most ideal tract index would contain a history of
ownership and encumbrances covering each parcel of real property
from the U.S. Patent to present (a “chain of title”).However, in many cases, title companies only have partially
completed tract indexes, which consist of chains of title spanning
a certain period (e.g., the last 40 years).You should determine which title company in your district
has the most complete plant and the most thorough tract indexes
and which can provide the most cost-effective service.Not all title companies were established at the same time,
and therefore they do not have the same historical data.

b.Customer Service Reports.

To
obtain cursory information about a particular parcel or tax lot
you can request an ownership report from the customer service
department of a title company.This report is commonly referred to as a “trio” because
it contains three items:(1)
an assessment map; (2) a tax assessment statement; and (3) the
most recent conveyance document record.The customer service report is usually provided without
charge.

c.Recorded Document Searches.

For
more in-depth services a title company will conduct a
comprehensive document search for all instruments recorded during
a broad scope of time (e.g., a patent-to-present search) or a
limited search for specific types of documents recorded during a
certain timeframe (e.g., easements and deeds recorded in the last
10 years).You will be
charged for this service.Plant
service rates are commensurate with the length of the search; for
instance, a patent-to-present search would be more expensive than
a title search covering 10 years.

3.Step 3 – County Clerk and Recorder.

a.Grantor/Grantee Index.

The
office of the county clerk and recorder maintains a filing system
for all recorded documents.These
documents are arranged alphabetically by the name of the grantor
and grantee and are collectively included in the grantor/grantee
index.The clerk’s
filing system differs significantly from a title company’s plant
because the grantor/grantee index is organized by name rather than
by property description.The
title company tract index is arranged geographically by section,
township and range.The
grantor/grantee index is a useful tool to supplement conveyance
document information obtained from the title company tract books
if the tract books are limited to a particular time frame (e.g.,
40 years).However,
searching the grantor/grantee index for conveyances made by John
Smith, for example, can be very time consuming.It is more cost effective to use the title company records
first and to consult the county grantor/grantee index only if
necessary.

b.Real Property Ownership Index and Assessment Maps.

The
county assessor has a tax index (or tax roll) of current real
property surface owners.The
index is usually arranged alphabetically by owner name and also
geographically by property location (section, township and range).Assessment maps showing property boundary lines and tax lot
numbers correspond with the information in the tax index.Because parcels are identified by tax lot number in many
conveyances and also in regulatory contexts, this can be important
information to have.

4.Step 4 – BLM

a.Master Title Plats – Historical Index –
Serial Register Pages.

The
BLM maintains copies of all patents granted by the United States.Patent numbers are listed on official maps called master
title plats.The
master title plats are indexed by township and range.In addition, all patent numbers and orders affecting the
disposal or use of federal lands are shown on the master title
plat and are indexed chronologically in the corresponding
historical index.The
BLM historical index is the chain of title, arranged
chronologically from patent to present, listing all actions having
to do with federal lands.The
BLM organizes historical indexes by township and range, normally
including all sections of a township.To obtain information about a patent or to search for
encumbrances that affect federal land, begin by reviewing the
master title plat and follow up by searching the historical index
and by requesting serial register pages for patents or
encumbrances.The
serial register contains all the documents referred to in the
indexes, arranged by designation and usually by a corresponding
number (e.g., Patent No. 43-64-1219 or Executive Order 5470).

The
following is the office for all Oregon federal lands;

Bureau of Land Management (Oregon State Office)

333 SW First
Avenue

Portland, Oregon
97204

Contact:Cathy
Harris, Chief – Public Affairs

Telephone:(503)
808-6027

5.Step 5 – Division of State Lands.

a.Maps and Index.

An
initial search of state lands should be made at the Division of
State Lands (“DSL”), which has copies of maps showing the
original conveyances from the federal government to the State of
Oregon.DSL also
maintains an index of easements encumbering state lands.

b.Department of Administrative Services.

The
State of Oregon has 20 agencies that may own land.To determine which state agency owns a particular parcel or
owns property in a given area, initial contact can be made with
the Department of Administrative Services (“DAS”), which will
direct you to the appropriate agency.

a.Benefits of Recordation.Recordation is the official means by which interests in
real property are made a matter of public record.Everybody is charged with “constructive notice” of all
recorded documents.Unrecorded
easements and other interests are subject to challenge if a
subsequent purchaser of the land subject to the easement buys it
with no actual notice of the easement.Districts should record easements and similar interests as
soon as possible after acquiring them.The following sections provide information that will help
districts through the recording process.If a district’s easements were not recorded when
acquired, they still can be recorded now.

b.The Recording Process in Oregon.Recording is a simple process that can be accomplished at
the county recorder’s office.There are two keys:The
documents to be recorded must conform to certain formal
requirements, and the proper fee must be presented.

Interference
with an easement is a form of trespass.Consequently, an easement holder is entitled to equitable
relief against a servient owner’s unlawful interference with the
easement holder’s enjoyment of the servitude, particularly when
the obstruction of an easement is of a permanent character.Jon W. Bruce & James W. Ely, Jr., The
Law of Easements and Licenses in Land, 8-63, (West Group
2001). Courts frequently enjoin the obstruction of an easement and
order the removal of encroaching structures at the servient
owner’s expense.Id at 8-64 – 8-65.The
fact that such removal may be costly is not ordinarily a
consideration; however, a court of equity may balance the relative
hardships of the parties and refuse an injunction when the expense
of removing an innocent encroachment would be disproportionate to
the injury suffered by the easement holder.Likewise, a court may impose equitable restrictions on the
easement holder as a condition of granting relief from
interference.Id at 8-65 – 8-66.A
court may compel the easement holder to contribute part of the
cost of removing an innocent encroachment, and may also deny
injunctive relief on the ground that monetary damages constitute
an adequate remedy for the easement holder.Id at 8-66.

An
easement holder, as the owner of a property interest, is entitled
to protection from acts of third parties that interfere with
enjoyment of the easement.Such
protection is available against third parties to the same extent
that it is available against the servient estate owner.Id at 8-68.For example,
an easement holder may recover damages from or obtain an
injunction against third parties who construct a building
encroaching on the easement area, use the easement without
authorization, or impede travel by parking cars on the easement
area.Id.

The
owner of the servient estate is also to be protected from
encroachments by the easement holder, who is not often permitted
to exceed the scope of his easement via major changes or
expansions.

This
section provides districts with an overview of the legal tools
available to them when they face problems with particular
easements.The first
part of the section reviews the various forms of civil lawsuit
that districts may bring to protect their rights.The second focuses on the land use process.The section concludes with a model land use ordinance
designed to use set backs and other tools to protect irrigation
district water delivery systems.The ordinance could be presented to local governments as a
proposed legislative change to the zoning code.

The
following sections briefly review the most common forms of legal
actions that irrigation districts might use to resolve disputes
over easement rights.This
section gives districts a basic understanding of their rights and
of potential legal means of protecting those rights.Directs involved in actual or threatened litigation should
always consult with counsel at the earliest possible stage.

1)Quiet
Title

A
quiet title suit is a suit in equity in which the court determines
the ownership of and right to possess a parcel of real property.

When
the landowner is an agency of the United States, an easement owner
may bring suit under the Quiet Title Act, 42 USCA § 2409a (1994).This statute provides a limited waiver of federal sovereign
immunity by allowing a private plaintiff to name a federal agency
as a defendant in an action to “adjudicate a disputed title to
real property in which the United States claims an interest.”Id.; see Adams v.
United States, 3 F.3d 1254 (9th Cir 1993) (quiet
title suit brought by holder of Carey Act easement crossing U.S.
Forest Service land).Potential
plaintiffs should be aware of the 12-year statute of limitations
under this act.The
period runs from the first time the plaintiff knew or should have
known of the claim of the United States.See Overland Ditch,
slip op at 11 (citing Michel
v. United States, 65 F.3d 130 (9th Cir 1995)).

In
Oregon, a suit to quiet title is a statutory civil action.See ORS 105.605.The statute requires that the defendant not be in
possession of the disputed land.This substantially limits the usefulness of quite title
actions for irrigation districts in disputes over easements,
because generally the landowner is in possession of the
land across which the easement travels.Easement holders typically bring suits for injunctive
relief, as discussed below.

2)Declaratory
and Injunctive Relief

Due
to the statutory form of the quiet title action in Oregon,
irrigation districts and other easement holders typically seek to
resolve disputes through suits for declaratory and injunctive
relief.See,
e.g., Wood v. Woodcock, 276 Or. 49 554 P.2d 151 (1976); Hall
v. Meyer, 270 Or. 335, 527 P.2d 722 (1974); Ericsson
v. Braukman, 111 Or. App 57 824 P.2d 1174 (1992).A declaratory judgment is an enforceable statement of the
rights and duties between the parties to the suit.An injunction is an enforceable prohibition of certain
action.These forms of
relief are appropriate for a district seeking, for example, a
determination that a particular easement is valid and an
injunction prohibiting the landowner from interfering with the
district’s use of the easement.

This
type of action is brought as a suit in equity and does not require
the plaintiff to allege that any actual damage has yet occurred
– only that there is a substantial threat that it will occur.For instance, such a suit may be appropriate where
residential development is gradually encroaching on an irrigation
canal or where a landowner has sent the district a letter stating
that the owner plans to lock his gates and not permit the district
access to maintain or repair its canal.

3)Trespass

Trespass
is a legal action that affords the plaintiff damages and
injunctive relief for defendant’s unauthorized entry onto real
property in which the plaintiff has exclusive rights.An easement holder generally does not have an exclusive
interest in the land covered by an easement.A trespass action generally does not lie against the
landowner (instead, quiet title, declaratory and injunctive relief
are appropriate, as discussed above).But trespass actions may be brought against third parties
with no claim to the land.Bileu
v. Paisley, 18 Or. 47, 21 P. 934 (1889) (owner of sheep that
fouled mining water ditch liable in trespass to owners of mining
water ditch).

4)Private
Nuisance

Nuisances
are divided into “private” and “public” nuisances.In either case, the touchstone of liability is whether the
defendant has “unreasonably interfered” with the plaintiff’s
enjoyment of a public or private property right.Irrigation districts will usually employ the private
nuisance theory but should not rule out the public nuisance
approach since irrigation district activities typically serve a
substantial portion of the public.Under ORS 105.505, any person whose property or personal
enjoyment of his or her property is affected by a private nuisance
may maintain a claim for damages.

As
this is the case for trespass, nuisance actions are generally not
the most direct or appropriate means of resolving disputes with
landowners, but nuisance actions can be effective when third-party
actions interfere with an irrigation district’s rights under an
easement.For
instance, nuisance may be appropriate where third parties not
subject to the terms of the easement itself are polluting an
irrigation ditch, interfering with access to the ditch or
endangering the lateral support for the ditch.

5)Challenge
to Agency Action

As
discussed in Section IV. k., above, government agencies will
sometimes attempt to regulate an irrigation district’s use of
easement rights in a way that substantially interferes with the
district’s goals.If
such matters cannot be resolved by informal negotiation with the
agency, litigation may be pursued under the state or federal
administrative procedures acts.The district’s claim is typically that the agency’s
regulatory decision or action is unreasonable (i.e., “arbitrary
and capricious”) or unauthorized by statute.More rarely, districts assert that the agency’s action
has resulted in a compensable taking of the district’s property
right.

Administrative
litigation usually involves a number of technical issues such as
ripeness, exhaustion and choice of forum.Districts that believe informal negotiations with the
agency are unlikely to succeed and those that are considering
litigation should consult with counsel before taking further
steps.

In
Oregon, the use of private land is subject to extensive public
regulation.While
districts pursuing their own land uses may sometimes find this
level of regulation onerous, they can turn it to their advantage
in protecting their water delivery systems.

1)Individual
Cases

Land
use requests that might affect irrigation district easement rights
include subdivisions, partitions, applications for lot of record
dwellings and planned unit developments.Districts can participate in these processes from the
earliest stages.Indeed,
districts will often have the chance to be at the
“preapplication conference” before a formal application has
been filed.

i.Notice

The
key to participating in a land use case from the start is being on
the local government’s “notice list.”The notice list typically includes all property owners
within a set distance (e.g., 500 feet) from the proposed land use,
as well as other parties who have expressed an interest in the
proceeding.

Irrigation
districts face a unique problem if their only interest within 500
feet of the proposed action is an easement or other canal right.The notice list usually is prepared based on the local
government tax assessor’s records.Easements do not generally show up on such records, and
districts therefore may not be on the notice list for land use
cases that have a real potential to affect their interest.

Districts
should contact all the local jurisdictions through which their
easements run and ask to automatically be put on the notice list
for all land use applications affecting the areas around the
easements.The
district will have to briefly scan a relatively large number of
applications, but doing so will make it far less likely that the
district will be left “out of the loop” on any really
important ones.

ii.Participating

Land
use proceedings are by design less formal than court proceedings,
and districts may choose to participate either at a low level, by
simply giving written or oral comments on an application, or more
intensively, by hiring counsel to file motions, work with local
planners and pursue necessary appeals.Because of the many technical requirements of state and
local land use law, local governments often make mistakes or
omissions in their handling of cases, and experienced counsel is
often able to exploit these oversights to help clients gain
greater bargaining power.

Generally,
districts can have a much greater impact by making it known they
will be a “player” at the earliest possible stage of the
proceeding.During the
early stages the applicant, opponents, local government personnel
and other participants are busy forming coalitions needed to
support their position.At
the early stages potential opponents, like irrigation districts,
can often win concessions in the form of setbacks and other needed
conditions by agreeing to support the proposed land use action.

2)Annexation
Proceeding

Districts
in developing areas may be annexed to a growing city and
potentially subject to city water supply monopolies.In addition, district members within the expanded city
boundaries may be subject to local laws limiting irrigation
practices.Early
participation in annexation proceedings can help to avoid these
outcomes.

As
an example of some of the problems that can arise when an
irrigation district property is brought within a city’s urban
growth boundaries, some local jurisdictions in Oregon have rules
requiring property owners to withdraw from any irrigation district
as a condition of approving an application to a partition or
subdivide land creating parcels below a certain size.These jurisdictions argue that municipal water is of a
higher quality than, and can be provided at the same cost as,
district water.The
constitutionality of such rules has not yet been challenged.

3)Legislative
Changes

In
addition to participating in individual land use application
proceedings initiated by other parties, irrigation districts can
take the initiative and propose changes to the local land use laws
themselves.This step
is called the amendment process.

i.The Amendment Process

Local
government land use is controlled at the local level by the
“comprehensive plan” and the “zoning and development
ordinance.”Each of
these documents is implemented by maps that designate each area of
the local jurisdiction for a certain type of development, and then
apply specific zoning to each area that allows the preferred type
of development.

These
documents can be modified in two ways:by changing the maps so that a particular area gets a new
designation or a new zone (a map amendment), and by changing the
text so that the development allowed in a given zone is expanded
or limited (a text amendment).

Generally
speaking, irrigation districts should protect their canals and
laterals from encroaching development on the private lands across
which district easements run.The primary means of achieving this goal would be to make
sure the local zoning ordinance contains “setback” limits that
forbid any development within a set distance of any irrigation
district water conveyance.A
proposed ordinance to this effect is included below.Such an ordinance is normally adopted by the local
jurisdiction via the text amendment process.

The
text amendment process is a public process that generally results
in a decision by the county planning commission or city council.The process generally costs less than $1000 to initiate and
takes one to three months to complete.

“All
residential structures and all subsurface sewage disposal systems
shall observe a minimum setback of 100 feet from the mean high
water level of any ditch, canal or other conveyance of irrigation
water.Existing
dwellings and residential lots of record unable to meet this
requirement shall be exempt from this setback.”

[1] The following materials reference the materials of the
September 1997 Oregon Water Resources Congress Easement
Protection Workbook (OWRCW). Reference to the appropriate section and page number of
the older material is provided, and new or additional
information is also set forth where appropriate.

[2] For example, the owner of the servient estate may qualify as a
“holder” where the easement is for a roadway and both the
servient estate and dominant estate owners have the right to
use the roadway.

[3] ORS 271.715 (1) provides: “[c]onservation easement” means
a nonpossessory interest of a holder in real property imposing
limitations or affirmative obligations the purposes of which
include retaining or protecting natural, scenic, or open space
values of real property, ensuring its availability for
agricultural, archaeological, or cultural aspects of real
property.

[4] ORS 271.715 (2) provides: “[h]ighway scenic preservation
easement” means nonpossessory interest of a holder in real
property imposing limitations or affirmative obligations of
the purposes of which include retaining or protecting natural,
scenic or open space values of property.